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Nothing federal about disasters

The role of the commonwealth in responding to natural disasters has traditionally been limited to responding to requests for assistance from state governments.

But in his recent National Press Club address, Scott Morrison noted the simultaneous reach of the bushfires across many borders this season demonstrated the limits of these arrangements.

He said the scale of defence deployments to assist in the bushfire crisis were testing the limits of constitutionally defined roles and responsibilities of the Australian government.

The Prime Minister sensibly flagged two legal policy matters to be considered in the wake of the bushfires: the legal framework to allow the commonwealth to declare a national state of emergency and the legal interface with the states on responsibilities when it comes to preparation for, and response to, natural disasters of a national scale.

These issues are long overdue for consideration by the Council of Australian Governments.

Disaster management responsibility in Australia is shared between the federal government, the states and territories and local government.

But there’s no federal disaster legislation and the Australian government has no legal standing over the states on disaster management matters. It sees its main role as funding for prevention activities, although it does provide federal assets to assist the states during a time of disaster as well as recovery funding.

The federal government has never seen itself as leading the response to a major national disaster. And it’s never been made clear who, on behalf of the federal government, is empowered to exercise emergency powers in the event of a national disaster.

Oversight of federal emergency management is the responsibility of Emergency Management Australia, a division within the Department of Home Affairs.

But as I argued 12 years ago in a report on national disaster resilience for the Australian Strategic Policy Institute, EMA has no legal power as a federal disaster co-ordinator: “EMA has no mandate, legislation or cabinet endorsement with which to take command. The delivery of EMA functions for the most part is the result of goodwill on behalf of other agencies. This is clearly not a satisfactory situation.”

Nothing has changed: without a specific national counter-disaster law setting out what is a “national emergency” it would be up to a court to determine if the disaster was one that required direct federal intervention.

Mr Morrison was right in his National Press Club address that this country was underprepared for a national catastrophic emergency where the Australian government may be expected to lead.

The federal government doesn’t have a clear legal authority that sets out its responsibilities for leading or even co-ordinating state disaster management efforts. There is no definition of a national emergency, agreed to by the states, to make it clear what the commonwealth could or should do.

As Canberra barrister and emergency law specialist Michael Eburn argued in December when there were demands the Prime Minister declare the fires represented a “national emergency”, the fact is the commonwealth has no overarching emergency management legislation.

There is no power to declare a “national emergency” and the declaration, if made, would have no legal effect or impact. It wouldn’t trigger any extraordinary powers or authority or release any emergency funds, Eburn pointed out. Any declaration, if made, would be, at best, symbolic.

But Eburn noted one caveat here: where a state government is so overwhelmed such that the state itself might be at risk of collapse, that would be a catastrophic disaster that would justify commonwealth intervention. To do so would be to “defend the Australia provided for in the Australian Constitution and would be as much a matter for the commonwealth as defending Australia from overseas aggression”.

While it’s doubtful the fires have reached the point of undermining the ability of any of our state governments to function, in this new era of disasters we need much greater legal clarity around the role of the federal government in Australian emergency management.